Today is the centenary of the birth of my father, Dennis Allman.
Lee v Asher’s – saved in the nick of time
For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.
How easily it could have gone the other way!
A race against time
This post is made firstly to the glory of God and in thanks to Him, and secondly in loving thanks to John F. Larkin QC, presently and at all relevant times the Attorney General for Northern Ireland, for his willing instrumentality, skilful and timely, in what I believe to have been a gracious plan of God’s.
By just one day, Mr Larkin had avoided missing a deadline he mightn’t have known at the time that he was racing to meet. This I see as an example of divine providence. How close we came to witnessing more cruel rejoicing last Wednesday, that the Supreme Court too had “found Ashers guilty of sexual orientation discrimination”. And how few are they who have yet learnt how close we came to this.
The peril posed by Lee v Ashers
Last Tuesday, i.e. a week ago, my country and the whole world were tottering on the brink of a precipice. The end of British liberal democracy and secularism as we know them were at hand, portending a pogrom against dissident thought criminals, in the wake of liberal democracy’s demise, that would be reminiscent of certain of the Tudors. Does that hyperbole sound too melodramatic to you? Then please educate yourself, about all that was at stake in Lee v Ashers, which could easily have gone the other way, enslaving us all for decades to come. If John Larkin had been just one day behind with his work at the crucial time, all would have been lost.
The victory for freedom that so nearly didn’t happen
On Wednesday, praise God, my prayers were answered, when the news broke of a reprieve, in the form of refreshingly common-sense judgment of the UK Supreme Court. The court stepped back from the edge of the metaphorical cliff off which the following illiberal morons employed as judges for lavish pay had wished civilisation to jump. I name them here, to shame them. All of them richly deserve redundancy notices before they can do any further damage: District Judge Brownlie (in Belfast County Court), and Morgan LCJ, Weatherup LJ and Weir LJ (in the Northern Ireland Court of Appeal).
The Supreme Court decided that those of us who opposed gay marriage conscientiously could not be punished after all for refusing to assist physically in the verbal or graphic support of gay marriage. And much more besides. Those who mentally oppose any cause, surely cannot now be made verbally to support it, by the abuse of discrimination law to infringe the freedom from forced speech. Basically, the Supreme Court snatched the freedom from forced speech most of us had thought was an inalienable right by now, from the jaws of oblivion, whither Ms Browlie and their lordships had cast that freedom, in their folly and shame.
But there was something else. Something that could all-too-easily have become a wrong that even the Supreme Court found itself unable to right.
Everybody had known for several years that Asher’s had discriminated against the political opinion Mr Lee had wanted them to express on a cake, support for “gay marriage”. What nobody sane believed was the gratuitous insult heaped on top of the injury by the dishonourable judges so far, that this refusal of forced speech had amounted to discrimination against the bully on the grounds of his sexual orientation. The villains who’d tried the first instance case and the appeal had gone out their way to be that vindictive. The gaystapo, notoriously intolerant of any opinion but their own, had gloated that Ashers had been “found guilty” of anti-gay discrimination. They had called them “bigots”, i.e. the sort of people who are intolerant of any opinion but their own.
Perfocal – the clowns who bit their own saviours!
There was a glorious moment of light – nay comic – relief soon after the judgment was handed down. The first beneficiary to claim the benefit of this simply glorious liberalisation, the first to use this reaffirmed basic freedom from forced speech, was the photography firm Perfocal, which promptly breached its contract with the Christian Institute to shoot and to hand over some propaganda shapshots outside the court in the aftermath of the salvation of the very right that Perfocal was thus exercising, a salvation wrought that day by Perfocal’s jilted customer, whom Perfocal paradoxically no-platformed for their having defended the very right to no-platform people with whom one disagrees that Perfocal was exercising itself!
But back to the big story …
A race against time the winner may not even known he was in!
Eponymously “supreme” or not, it was by no means certain that the so-called Supreme Court would believe it had the authority necessary to rekindle the smouldering wick of freedom, which Ms Brownlie had tried out to snuff out, and upon which their three lordships in the NI CA had since pissed. This desperate attempt to extinguish the flame of freedom involved a feat of sophistry that makes Ignatius Loyala’s so-called “Society of Jesus” look straightforward country folk in comparison. The NI CA delivered a perverse, wicked and rambling judgment of which even legal scholars can make neither head nor tail to this day, and which Lady Hale confirmed to us had been the complete load of bollocks we’d thought it was all along.
The “Supreme” Court needed a loophole, if it wasn’t to find itself impotent to speak the words it wanted to, “Peace! Be still!”, into the tumult of the Cake Wars. Lord Mance was subcontracted to find the loophole that could save civilisation. His scavenging for a straw of hope uncovered a week’s bureaucratic delay, between the counter-intuitive judgment of the NI CA and the sealing of the order giving effect to that judgment.
Lord Mance discovered (or invented, more like) the boring, technical loophole that enabled Lady Hale to utter the televised soundbites that she had saved liberal democracy in the nick of time herself. Saint John Larkin (as I now call him) had managed to cry foul (in the sort of nitpickingly complicated way that lawyers sometimes are forced to state the bleedin’ obvious) on Friday 28th October 2016. Hence my exclamation, “What a difference a day makes!”
But for this happy discovery of a loophole on Lord Mance’s part, last Wednesday would have been the day that freedom from forced speech died.
If John Larkin hadn’t got that paperwork to the court on Friday 28th – if the paperwork had instead been delivered the following Monday 31st, or shoved through the letter-box on the Saturday for that matter – the gaystapo would have been dancing in the streets again last Wednesday, still gloating that innocent Ashers had been “found guilty” of direct sexual orientation discrimination against Mr Lee. Ashers and the rest of us, would now be their slaves and the prisoners for the foreseeable future, as Ms Brownlie and the NICA three had planned.
What a difference a day made! Thank you God, and well done John Larkin.
And well done Lord Mance too. The first half of the judgment for which Lady Hale gets the glory in the media was a piece of cake (as well as a peace, of cake). I reckon I could almost have written her bit myself, though not as posh as she did obviously. The really clever part of the judgment was your second half, m’lord, from paragraph 63 onwards. You saved the day, not to say the country and civilisation. Your speech was up to Lord Denning’s standard, in the art of sophistry deployed in the service of common sense and the common man for a change, to make sure (as Denning used to like to) that the little fellow being picked on got protection from the powerful bully. You deserve credit for that. Thank you.
But God deserves, and gets, the glory. John Larkin got his “reference” under paragraph 33 in before the order of the CA was sealed. It was this crucial timing that provided the loophole that Lord Mance “found” (or invented) that enabled Lady Hale to look like a goodie for a change. Thank heaven for huge mercies!
Two other authors’ more scholarly blog posts about the legal technicalities:
Anurag Deb and Conor McCormick: Lee v Ashers: A Recipe for Jurisdictional Confusion?
Joanna Bell: The Supreme Court’s Approach to the Finality Clause in Lee v Ashers: A Response to Anurag Deb & Conor McCormick & Looking Forward to Privacy International
Earlier posts of mine on the topic of Lee v Ashers:
An eye for an eye and a cake for a cake
2 responses to “What a difference a day made!”
Excellent article, John, which highlights the gross injustices that exist within our legal system. The original judgment in the Belfast County Court, and the subsequent endorsement of that utterly perverse and legally deficient judgment by the equally asinine Northern Ireland Court of Appeal were so inept and devoid of reason that all of those judges should be deemed to be professionally incompetent and therefore not fit to judge any future cases…
The legal precedent for such an action is how the law treats juries who can be adjudged to have reached a perverse verdict that runs completely counter to the clear evidence presented to the court during the trial that they are deliberating on. In such cases, the QC adjudicating the case may direct that such a jury be dismissed from trying any further cases during their call-up time for jury service, on the basis that they are either partisan or not fit to exercise sound logic and reason with respect to the evidence that has been presented to them. Such is clearly the case with respect to the judges in the original Ashers case and the subsequent Appeal Court case…
How can one possibly trust such incompetent ignoramuses or those who pronounce such partisan and cavalier judgments ever again? We cannot, and they should go – but of course, they won’t. In any other field of work, had their supposed competency, impartiality and professionalism been so obviously called into question by such a reversal at a much higher level, some form of disciplining or outright dismissal would inevitably follow. At the very least, they would be “transferred to other duties” as often happens with police officers who have abused their position of trust as servants of the law, or been shown to have been incompetent or deficient in how they exercised their powers. Why are judges not held to account in a similar way, especially since they sit one echelon above the police in the legal hierarchy and are therefore capable of causing even greater travesties of injustice, as nearly happened to the Ashers through such perverse judgments and – vicariously – to every single one of us who exercises moral conscience in our daily lives…
Can you please clear up one query for me though, that I’m not clear on? Are you saying that the Appeal Court’s ruling came close to being sealed by virtue of the passage of time, thus preventing the Supreme Court from trying the case at all? And whether this was so or not, what was the loophole that “Saint” John Larkin unearthed that paved the way for them to try the case afresh and which allowed sanity and reason to achieve a rare victory in these insane times in which we now live? If you can answer those queries I’d be grateful, for clarification’s sake.
Many Thanks once again for an excellent and well articulated article, John.
Your “one query” is about the very fact about the litigation timeline that inspired my headline.
On Monday 24th October, the Court of Appeal (CA) handed down its dreadful judgment, the one that we both consider perverse.
The CA’s judgment (which was 32 pages long) explained the CA’s reasons for making the order (which probably had only one or two pages) which the CA was intending to make at that stage.
The following Monday, on Halloween, the Court of Appeal actually made the order that gave effect to the judgment.
During that week-long gap between judgment and order, the Attorney General made a “reference” of a “devolution issue” about the Sexual Orientation Regulations to the Supreme Court. He left it until Thursday to sign that reference and got the signed forms to the court on the Friday 28th.
That reference was accepted by the Supreme Court as being “in” (i.e. during) “the proceedings”, because the reference it was made on Friday, and the order wasn’t rubber-stamped (“sealed”) until Monday, after the weekend.
Because he got it in on Friday, the Attorney General had a right for his reference to be heard in the Supreme Court. A reference made after the order had been sealed, could be blocked by the CA itself, and indeed one such was.
The appeal to the Supreme Court was in two parts.
(a) Appeal against the finding of sexual orientation discrimination, and
(b) appeal against the finding of political discrimination.
(Political discrimination is allowed in Great Britain, but not in Northern Ireland, because of The Troubles.)
If the Attorney General hadn’t got that paperwork to the court by Friday, before the rubber stamp was applied to the order on Monday, the Supreme Court would not have been able to hear the first part, part (a) of Asher’s appeal (about sexual orientation). If the Attorney General had got his “reference” in just one day later than he did, Mr Lee would still be gloating today that Ashers had been “found guilty” of sexual orientation discrimination. That’s how close it was.
Read the judgment, from about paragraph 63 onwards, and especially from 72 onwards. You’ll see that that one day made all the difference.